Barasch v Williams Real Estate Co., Inc.

Barasch v Williams Real Estate Co., Inc. 2012 NY Slip Op 08075 Decided on November 27, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 27, 2012
Tom, J.P., Saxe, Richter, Abdus-Salaam, Feinman, JJ.
8631 600053/09

[*1]Candace Carmel Barasch, Petitioner-Respondent,

v

Williams Real Estate Co., Inc., Respondent-Appellant, Williams Corporate Realty Services, Ltd., et al., Respondents.




Foley & Lardner LLP, New York (Jeremy L. Wallison of
counsel), for appellant.
Wachtel Masyr & Missry LLP, New York (John H. Reichman
of counsel), for Candace Carmel Barasch, respondent.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered on or about November 7, 2011, which, to the extent appealed from as limited by the briefs, granted petitioner an appraisal of the fair value of her shares in respondent Williams Real Estate Co., Inc. (Williams) and denied Williams' cross motion for summary judgment dismissing the petition as against it, unanimously affirmed, with costs.

Williams sent a formal notice to its shareholders, stating that a meeting would be held to consider "[t]he authorization . . . of the proposed disposition of substantially all of [its] assets" (emphasis added). In reliance thereon, petitioner chose to exercise her appraisal rights under Business Corporation Law § 910(a) instead of, for example, seeking to enjoin the transaction. Hence, Williams is estopped from denying that it disposed of substantially all of its assets (see Matter of McKay v Teleprompter Corp., 19 AD2d 815 [1st Dept 1963], appeal
dismissed 13 NY2d 1058 [1963]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 27, 2012

CLERK